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By Anandashankar Mazumdar

The copyright status of pre-1972 sound recordings, which are currently protected only under state law, would be federalized if a bill introduced Sept. 14 were to be enacted.

The Sound Recording Simplification Act (H.R. 2933), introduced by Rep. Jared S. Polis (D-Colo.), would extend the umbrella of the Copyright Act to old sound recordings, including many popular music recordings currently governed by a complex web of contractual relationships.

The bill comes on the heels of a Copyright Office inquiry launched last November into a Copyright Act provision that has sparked controversy, particularly between rightsholders on one side and librarians and archivists on the other side.

At a recent hearing hosted by the Copyright Office, representatives of the music industry expressed extreme discomfort with changing the status of pre-1972 sound recordings.

Under current law, sound recordings created before 1972 are subject to a patchwork of state laws, including criminal laws, anti-bootlegging laws, right of publicity laws, and other civil laws.

Librarians and archivists have argued that this complex legal regime makes it difficult for them to determine whether they are acting lawfully when making copies for preservation, educational, and other purposes.

Many copyright holders, however, are comfortable with the current system and the contractual ties that have been followed for decades.

Sponsor Advocates Uniformity, Clarity, Consistency

The variation in protection from state to state hinders the ability to have a consistent business approach regarding rights ownership. The scope of protection and what would constitute acceptable use are inconsistent due to the lack of detailed precedent. Additionally, state law does not have provisions that account for modern technology, such as streaming music websites, and songs as data are increasingly easy to transmit.

The statement also expressed support for the preservationists' position, noting that many old recordings are embodied in deteriorating media, such as phonograph cylinders, which were the dominant recording medium in the United States until about 1915 and which stopped being mass-produced by 1930.

Federal copyright protections did not apply to sound recordings until the enactment of the Copyright Act of 1976, but Section 301(c) of the statute preserved the jurisdiction of state law for pre-1972 sound recordings. In fact, Section 301(c) currently precludes Congress from annulling or limiting that common law protection until 2067. Specifically, Section 301(c) provides:

With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.

The brief text of H.R. 2933 would delete Section 301(c). The bill has been referred to the Committee on the Judiciary of the House of Representatives.

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